that appeals board while as an allotment body, having made the original judgment from which the farmer is appealing. That is the question I had in mind.

Mr. COвв. The farmer would not appeal from the judgment, Mr. Kleberg, because there is no judgment made. With the allotment board it is merely a matter of mechanics and no judgment is involved. The only point at which the question of judgment would arise would be in the case of an appeal that comes back to the board where they simply had no figures or basis for the calculation.

Mr. KLEBERG. That would be different. The point I am trying to keep in mind, and to clear up in my mind, is if this appeals board would not be disqualified, if an action were to be taken into the courts by the farmer by the very fact that the appeals board, while acting as the allotment board, had made certain decisions from which appeal is made to the same body.

Mr. COBB. The lawyers say no; they have approved that plan.
Mr. KLEBERG. I have not looked into it, as I say.

Mr. COBB. They have gone into it very thoroughly and they say. there is no legal difficulty involved there.

Mr. KLEBERG. I see.

Mr. COBB. Inasmuch as the first act is merely that of a mechanical operation it does not relate to the question of judgment at all, and in considering an appeal they would not be sitting in judgment upon. their former acts.

Mr. KLEBERG. That is the point that I had in mind.

The CHAIRMAN. I would like to ask you a question. I do not understand that it is purely a matter of mechanics, Mr. Cobb.

Mr. COBB. I think it is.

The CHAIRMAN. It may be a mechanical operation as between the States, but the board makes the allotments to the individuals. Mr. Cовв. To the individuals on the basis

The CHAIRMAN. So that it has pretty broad discretion.

Mr. COBB. That is done in this way, Mr. Chairman: The board makes an allotment based on an application; the board's allotment is made upon an application which comes from the community and it is not worked out in the county. When it gets up to the State allotment

The CHAIRMAN. There is 10 percent held back, however?
Mr. COBB. Yes.

The CHAIRMAN. That may be allotted in various ways. But on the original 90 percent the Secretary of Agriculture is given discretion to take into consideration a man's previous reduction, voluntary reduction, in determining the allotment.

Mr. COBB. Not as to the 90 percent.

The CHAIRMAN. That is the way I understand it.

Mr. COBB. That is the 10 percent.

The CHAIRMAN. I understand it applies to the 90 percent. I know that he has almost complete discretion in the 70 percent. I understand that in individual allotments he has some discretion in 90 percent, and I think you will find that he has.

Mr. COBB. There is no discretion at that point. It is purely based upon an application of what comes to the State, and they simply take the figures that are furnished the State and base their calculations on them, and there is no judgment involved at all..

The CHAIRMAN. Here is the provision of section 7:

The amount of cotton allotted to any county pursuant to section 5 (b) shall be apportioned by the Secretary of Agriculture to farms on which cotton has been grown within such county. Such allotments to any farm shall be made upon application therefor and may be made by the Secretary based upon(1) A percentage of the average annual cotton production of the farm for a fair representative period; or

(2) By ascertaining the amount of cotton the farm would have produced during a fair representative period if all the cultivated land had been planted to cotton, and then reducing such amount by such percentage (which shall be applied uniformly within the county to all farms to which the allotment is made under this paragraph) as will be sufficient to bring the total of the farm allotments within the county's allotment; or

(3) Upon such basis as the Secretary of Agriculture deems fair and just—

It is just as broad as the earth.

Mr. COBB. I am going to ask Mr. Hiss to answer you.

The CHAIRMAN (reading):

And will apply to all farms to which the allotment is made under this paragraph uniformly within the county on the basis or classification adopted. The Secretary of Agriculture, in determining the manner of allotment to individual farmers, shall provide that the farmers who have voluntarily reduced their cotton acreage shall not be penalized in favor of those farmers who have not done so.

Now, that antedates the allotment, and this whole program of giving discretion to the Secretary was to take care of that farmer who has been trying and cooperating with the volunteer program to adjust production on that basis.

Now, that would defeat the whole question, if there is not more than 10 percent. The 10 percent is set out in section 8. This refers to the 90 percent, and I think there is broad discretion in this allot

ment.

Mr. COBB. I am going to ask Mr. Hiss if he will say something on

that.

STATEMENT OF ALGER HISS, ATTORNEY, SOLICITOR'S OFFICE, DEPARTMENT OF AGRICULTURE

Mr. Hiss. Mr. Chairman, I think it would make it a little clearer if I give you the gradual steps that are used in making up an allotment under this act.

The CHAIRMAN. All right.

Mr. Hiss. Section 7, the section you have just read, states the duty and specifies what the Secretary shall do, and lays down standards for the classification he makes

The CHAIRMAN. Yes.

Mr. Hiss. And in this he has broad discretion, but the allotment board has no discretion; that is determined under the act and regulations, permitted under the act. The result of the allotment plan is this: The community committee applies the standards to concrete cases and has the responsibility of determining the facts. You have that action on the part of the community committee. In turn the county committee reviews the acts of the community committee and the conclusions of the county committee, in last year's program and in this year's program, so far as the mere mechanics and the determination of the facts are concerned in the uncontested cases, are final, and the State allotment board merely takes the figures from the

county and adds them, totals them up in order to make an allotment on the basis of the rules laid down by the Secretary. It has no discretion. In contested cases, where the farmer says, "You did not find the facts correctly under the standards which the Secretary has made, because I grew five more acres of cotton than you have allowed me and I have got witnesses that can prove it ", and goes to the appeals board on that question, it so happens that the appeals board is formed of persons who also act as the State allotment board but it has a totally different function to perform than the State allotment board, which has a purely mechanical operation in the contested and uncontested cases. They merely add up the figures.

The CHAIRMAN. And according to the analysis you here present you have had an allotment board that has no responsibility Mr. Hiss. Purely mechanical.

The CHAIRMAN. And wholly useless so far as the farmer was concerned.

Mr. Hiss. It was not useless.

The CHAIRMAN. Well, nothing was left to them.

Mr. HISS. But the committee had to stay within the maximum limit for the county.

The CHAIRMAN. You did not need them if they were not to make the allotments

Mr. Hiss (interposing). But we had to have someone do the paper work.

The CHAIRMAN. That may be the way it has been handled but the way the law reads the allotment board certainly had broad discretion; it had to see that the policy announced by the Secretary was carried out and there is no question in my mind at all about that. If a man were in a county, under this authority that is put on the Secretary, if he was not given fair and just treatment it was the allotment board's business to see that he was.

Mr. Hiss. They did a great deal of paper work

The CHAIRMAN. You say that they did only mechanical work. Mr. Hiss. They did the mechanical work, a great deal of paper work; they did all they should under the procedure set-up.

The CHAIRMAN. Insofar as the paper, clerical work was concerned. Mr. Hiss. They did that. Now, whether or not they had further duties in the kind of case involving facts suggested by one of the members of the committee

The CHAIRMAN (interposing). It seems to me that under the terms. of this law they have pretty broad discretion. I think the language that I read is clear-that this was intended to and does cover the 90 percent.

Mr. HISS. That is correct. I think they were to see that the allotments for last year were made according to the regulations laid down by the Secretary. The difficulty, of course, was the lack of time.

The CHAIRMAN. I realize you had a lot to do in a short time.
Mr. Hiss. Yes.

The CHAIRMAN. But I think these duties were imposed upon the allotment board.

Mr. Hiss. There is no specific provision that there is to be a State allotment board.

The CHAIRMAN. The whole program was in the hands of the Secretary and the allotment of the cotton to the different States.

Mr. Hiss. Yes.

The CHAIRMAN. Based on the past record.

Mr. Hiss. Yes.

The CHAIRMAN. And the allotment boards within the State certainly had all the authority and all the duties that devolved upon the Secretary of Agriculture, insofar as that allotment is concerned?

Mr. Hiss. Insofar as determining whether there was a compliance with the Secretary's rules and regulations. That had to be done by someone. Now, the county board

The CHAIRMAN. Well, you might have had just an ordinary stenographer or a clerk to handle the paper.

Mr. Hiss. You needed more than that, Mr. Chairman.

The CHAIRMAN. It strikes me that is about all, according to the analysis that you have made of the way the board handles such matters affecting these allotments.

Mr. Hiss. Mr. Chairman, I think the administration would agree with you on that point. The difficulty, of course, was one of time last year. If these contested cases had been heard, beginning with the 1st of April or the end of April, when this act was passed, it would not have been possible to have covered them all.

The CHAIRMAN. I realize that you had a difficult problem.
Mr. Hiss. In the short time we had last year.

The CHAIRMAN. But aside from that, I think that some attention should have been paid to the provisions that govern the allotments. Mr. COBB. I think there was, Mr. Chairman.

Mr. Hiss. I think that provision covered the Secretary's job and fixed a certain amount

The CHAIRMAN. Oh, the Secretary did not have any more idea about whether a man in Parmer County has been reducing his crop than the man in the moon.

Mr. Hiss. That may be true.

The CHAIRMAN. That was not before the Secretary.

Mr. Hiss. But the people who were in that county did, and they were the men to make the final determination; this year they will pass upon the first determination.

Mr. KLEBERG. I was not quite through with my question, Mr. Chairman.

The CHAIRMAN. Yes; I did not mean to interrupt you.

Mr. KLEBERG. That is perfectly all right. But I want to present this point and would like to direct the attention of Mr. Cobb and Mr. Hiss also to it. The law as drafted does not preclude this set-up from the one suggested, if found advantageous.

Mr. Hiss. That is correct.

Mr. KLEBERG. Now, the question of the location of the State appeals board is one thing to be considered. There would be a considerable distance to go in some States. Of course, Texas is different from the other States in that regard.

Now, is there anything in the law which would prevent the Department from dividing up a State into four districts and setting up an appeals board in the various districts?

118908-35-SER D--5

Mr. Hiss. Mr. Kleberg, I understand that in Texas they actually contemplate three appeals districts.

Mr. KLEBERG. I see.

Mr. Hiss. And the appeals board will sit in the districts, hold its first meetings according to where the crop season opens first, and then into the next subdivision, and on through until they have heard the appeals throughout the entire State.

Mr. KLEBERG. Now I am going back to the first proposition which has been analyzed by Mr. Jones, and he brought out in the details that were below my question in the first instance as to whether or not the State allotment board thereafter should sit as a board of appeals. Mr. Hiss. That is whether it would be disqualified?

Mr. KLEBERG. Whether it would be disqualified, yes. The point I have in mind is this, taking the law and the facts and considering the power which is given to the allotment board in the first instance. if that would not, in toto, disqualify it?

Mr. Hiss. My answer to that, Mr. Kleberg, is that in the case of the allotment board it has not rendered any judgment. It simply makes an allotment, as a mechanical operation.

Mr. KLEBERG. That is, makes the findings of fact.
Mr. Hiss. More in the nature of a rubber stamp.

Mr. KLEBERG. Well, in addition to that, as pointed out by the chairman they have something more than a mechanical function to perform. And when they go to court and the court looks at the law to determine whether or not the board in doing those things had certain functions to perform and whether it had exercised them or not will not be the determining question.

Mr. Hiss. As an allotment board, I do not think it had. I think that was for the Secretary and he did not delegate it to them.

Mr. KLEBERG. Take the county case, for instance, the case mentioned here by the chairman of the farmer in Parmer County on the question that was referred to the county allotment board. Suppose the farmer in that county contested the allotment in a case in which this committee did not allow him what he asked.

Mr. Hiss. The county's part of the total allotment to the State? Mr. KLEBERG. Yes.

Mr. Hiss. They have got to go back of the State on that; that is all done in Washington.

Mr. KLEBERG. The question that I am arriving at is this: What are the elements that determine the fixing of that allotment?

Mr. Hiss. Last year and in the case where you had an allotment board that is also the appeals board?

Mr. KLEBERG. Yes.

Mr. Hiss. Simply to take the facts that came to them from the field; how many acres a man had produced in the past and apply the percentage to them that the act has provided for and see that the total allotments after applying the percentage were not in excess of the county's total allotment, and if they were in excess they had to go back

Mr. KLEBERG. And the question I have

Mr. Hiss (continuing). To make the allotment balance the State allotment.